When Does 'News' Really Fall Under The 'News' Exemption Of The Copyright 'Fair Use' Doctrine?

Copying another's work is generally copyright infringement — unless it qualifies as "fair use." Determining whether the fair use doctrine applies is no simple task. In 1939, the prominent Judge Learned Hand called the "fair use" doctrine "the most troublesome in the whole law of copyright."1 Most would agree that this statement remains true today, more than 70 years later.

Federal law provides examples of "fair use," including use of a work for criticism, news reporting, teaching and research.2 Falling within one of these categories does not mean that the fair use exception automatically applies. Instead, whether a use is "fair" must be determined on a case-by-case basis, considering factors such as (1) the purpose and character of the use (e.g., whether the use was commercial, and whether it was "transformative" in that it added something new to the work); (2) the nature of the copyrighted work (e.g., factual vs. creative, published vs. unpublished); (3) the amount of the work used; and (4) the effect of the use upon the potential market for or value of the copyrighted work.3

Several federal courts have recently faced defenses based upon the "news reporting" aspect of the fair use doctrine, and, decided that it does not apply, even when the use arguably relates to "news reporting."

In Monge v. Maya Magazines, Inc.,4 the Ninth Circuit considered whether the copying and publication of wedding photographs was fair use. A professional singer married her manager but then kept the marriage a secret for more than two years, until the couple's driver (who also happened to be a paparazzo) found photographs of the secret wedding.5 The driver sold the photographs to Maya Magazines, which then published five of the six pictures taken on the couple's wedding night.6 The court considered the "fair use" factors set forth above, and concluded that each weighed against a finding of fair use.

The purpose and character of the use: Although the coverage of the wedding qualified as news reporting, the photographs themselves were not the subject of the story, and were not necessary to prove that the wedding occurred.7 Additionally, the copying of the photographs was for commercial purposes, and was "minimally transformative" because Maya Magazines essentially reproduced the photographs in their entirety.8

The nature of the copyrighted work: The photographs were not highly artistic in nature, but they were unpublished. Under ordinary circumstances, an author's...